Oso & Anor v Newham University Hospital NHS Trust

An Employment Tribunal does not err in law merely because its conclusions are brief, provided its findings disclose the essential reasoning and the decision is unarguably right. In unfair dismissal cases, the tribunal must assess what it was reasonable for the employer to do, including the reasonableness of the investigation at every stage. In misconduct cases, the Burchell requirements and the range of reasonable responses remain central. Race discrimination requires more than different treatment of persons of different races; the treatment must be on racial grounds. Actual or hypothetical comparators may be used, but a tribunal need address only the issues properly raised and live before it.

The Claimants, two Nigerian nurses, appealed against an Employment Tribunal’s dismissal of their claims for unfair dismissal and direct race discrimination. They had been summarily dismissed after an extensive investigation into allegations of bullying, harassment, unprofessional conduct and breaches of professional and organisational standards at a neonatal unit.

The Employment Tribunal found that the Respondent had investigated the allegations fairly, had genuinely relied on the misconduct findings, and had not acted on racial grounds. It also found that the circumstances of other staff who were investigated but not suspended were materially different. The appeals challenged the Tribunal’s reasoning, its treatment of comparators, the investigation and disciplinary procedure, and its failure to determine alleged wrongful dismissal.

1. The appeals were dismissed. The Employment Tribunal’s reasons were short, but the Claimants could not be in doubt about why they lost. Its extensive factual findings disclosed the basis of its conclusions.
2. On race discrimination, the Tribunal was entitled to find that race played no part in suspension, investigation or dismissal. The fact that the seven initially suspended employees were Nigerian did not itself establish discrimination. The additional employees who were investigated but not suspended had materially different circumstances, including the timing and scope of the investigation, the nature of the allegations, and, in some cases, acceptance of inappropriate conduct. The Tribunal was entitled to consider the Respondent’s explanations in a single stage.
3. The Tribunal was entitled to focus on actual comparators because the Claimants had relied on them in the identified issues and the alleged comparators were not in materially similar circumstances. Its alternative observation that the result would have been the same with hypothetical comparators answered that point in any event.
4. On unfair dismissal, conduct was a potentially fair reason under Employment Rights Act 1996, and the Tribunal correctly applied the principles in BHS Ltd v Burchell. The Respondent genuinely believed the allegations following a substantial investigation, and summary dismissal fell within the range of reasonable responses. Reasonableness applied to all stages of the process, and there was no prejudicial delay.
5. The alleged automatic unfair dismissal under section 98A(2) had no factual basis. The Claimants had been notified of the allegations, invited to a meeting and given an appeal. Wrongful dismissal was not a live head of claim identified through the case-management process and therefore required no determination.

• Employment Appeal Tribunal: appeals from the Employment Tribunal’s judgment registered with reasons on 8 December 2009 were dismissed.